[Federal Register Volume 73, Number 128 (Wednesday, July 2, 2008)]
[Notices]
[Pages 37936-37938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15051]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI62


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Coastal Commercial Fireworks Displays at Monterey Bay 
National Marine Sanctuary, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of issuance of a letter of authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) and 
implementing regulations, notification is hereby given that a 1-year 
Letter of Authorization (LOA) has been issued to the Monterey Bay 
National Marine Sanctuary (MBNMS) to incidentally take, by Level B 
harassment only, California sea lions (Zalophus californianus) and 
Pacific harbor seals (Phoca vitulina) incidental to professional 
fireworks displays within the MBNMS in California waters.

DATES: This authorization is effective from July 4, 2008, through July 
3, 2009.

ADDRESSES: The LOA and supporting documentation are available for 
review in the Permits, Conservation, and Education Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910, by contacting one of the individuals listed here (FOR FURTHER 
INFORMATION CONTACT), or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may be viewed, 
by appointment, during regular business hours, at the aforementioned 
address and at the Southwest Region, NMFS, 501 West Ocean Boulevard, 
Suite 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Jaclyn Daly, or Jolie 
Harrison, Office of Protected Resources, NMFS, (301) 713-2289, or 
Monica DeAngelis, Southwest Regional Office, NMFS, (562) 980-4023.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued. Under the MMPA, the term ``taking'' 
means to harass, hunt, capture, or kill or to attempt to harass, hunt, 
capture or kill marine mammals.
    Authorization shall be granted for periods up to 5 years if NMFS 
finds, after notification and opportunity for public comment, that the 
taking will have a negligible impact on the species or stock(s) of 
marine mammals and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses. In 
addition, NMFS must prescribe regulations that include permissible 
methods of taking and other means effecting the least practicable 
adverse impact on the species and its habitat and on the availability 
of the species for subsistence uses, paying particular attention to 
rookeries, mating grounds, and areas of similar significance. The 
regulations must include requirements for monitoring and reporting of 
such taking.
    Regulations governing the taking of California sea lions and 
Pacific harbor seals, by Level B harassment, incidental to commercial 
fireworks displays within the Monterey Bay National Marine Sanctuary 
(MBNMS) became effective on July 4, 2006, and remain in effect until 
July 3, 2011. For detailed information on this action, please refer to 
the original Federal Register notice (71 FR 40928, July 19, 2006). 
These regulations include mitigation, monitoring, and reporting 
requirements for the incidental taking of marine mammals during the 
fireworks displays within the Sanctuary boundaries. This will be the 
third LOA issued pursuant to these regulations.

Summary of Request

    On February 27, 2008, NMFS received a request for a LOA pursuant to 
the aforementioned regulations that would authorize, for a period not 
to exceed 1 year, take of marine mammals incidental to fireworks 
displays at the MBNMS. Justification for conducting fireworks displays 
within the MBNMS can be found in the proposed rule (71 FR 25544, May 1, 
2006).

Summary of Activity and Monitoring Under the Current LOA

    For the City of Monterey Independence Day Fireworks Celebration, 
MBNMS was required to: (i) conduct counts of marine mammals present 
within the fireworks impact area immediately before and one day after 
the event; (ii) conduct behavioral observations of marine mammals 
present during the display; and (iii) conduct NMFS-approved acoustic 
monitoring of sound levels for the duration of the event. The 
regulations set forth in 50 CFR 216.115 (b)(1-2) specified that the 
behavioral census and acoustic study were one-time events. To fulfill 
these requirements, MBNMS contracted with a private environmental 
consulting firm to conduct the acoustic and behavioral study and 
submitted a 91-page report titled, ``Marine Mammal Acoustic and 
Behavioral Monitoring for the Monterey Bay National Marine Sanctuary 
Fireworks Display 4 July 2007.'' to NMFS on November 8, 2007. Following 
is a summary of that report.

Acoustic Monitoring

    The acoustic technician used two separate systems to monitor sound 
levels in the environment on July 4, 2007. The first system, customized 
for recording low frequency sounds associated with impulsive noise such 
as explosions, consisted of a digital audio tape recorder and a 
microphone with a low frequency cut-off. The second acoustic monitoring 
system, a sound level meter, measured the sound pressure associated 
with fireworks shell detonations during the display.
    Acoustic monitoring began at 6 p.m. on July 4, 2007. Consultants 
placed the monitoring equipment at the east end of the U.S. Coast Guard 
(USCG) pier approximately 800 meters from the fireworks launch site to 
measure ambient noise, sea lion vocalizations, fireworks detonations, 
and aircraft noise. From 6 p.m. to 9 p.m. PDT, the average sound level 
measured over one hour (Leq 1 hour) ranged from 58.8 to 59 decibels 
(dB) and included sounds from sea lions barking, random fireworks in 
the local area, and recreational boat traffic.
    The fireworks display began at 9:15 p.m. PDT with two sets of 
fireworks detonations and ended with a grand finale of multiple 
explosions at 9:35 p.m. PDT. The average sound level measured during 
the hour containing the fireworks display was 72.9 dB (Leq 1 hour), 
approximately 14.0 dB greater than ambient levels recorded before the 
display.

[[Page 37937]]

    During a fireworks display, aerial shells are launched from tubes 
(called mortars) to altitudes of 200 to 1,000 feet above sea level. As 
the shell travels skyward, a time-delay secondary fuse is burning that 
eventually ignites a burst charge at a predetermined altitude. When the 
burst charge detonates, it ignites and scatters incendiary chemicals 
that spectators view as fireworks. Fireworks launch noises are known to 
cause a startle response or initiate a flight to water response in 
marine mammals.
    Peak sound level (peak) is the greatest instantaneous sound level 
reached during a sound event and is denoted in the units of Pascals 
(Pa). The loudest sound recorded during the event was associated with a 
detonation of a 10-inch shell (9:18 p.m. PDT) measured at 133.9 dB re: 
20 microPa (peak). Sound exposure level (SEL) is a measure of the total 
sound energy in a sound event if that event could be compressed into 
one second. The detonation of the 10-inch shell had an unweighted SEL 
of 105.0 dB re: (20 microPa)2 -s. The second loudest sound 
recorded was associated with an 8-inch shell (9:23 p.m. PDT) measured 
at 127.0 dB re: 20 microPa (peak) with an unweighted SEL of 90.1 dB re: 
(20 microPa)2 -s.
    Overall, the fireworks launch noises generated in the display were 
low- to mid-frequency and ranged from 97 to 107 dB re: 20 microPa and 
the majority of the fireworks detonations ranged from 112 to 124 dB re: 
20 microPa.

Behavioral Monitoring

    A NMFS-approved marine mammal observer conducted a visual census of 
the California sea lion and Pacific harbor seal haulout sites on July 
4, 2007. The observer conducted the census aboard the MBNMS vessel P/B 
Shark Cat in the vicinity of the southern side of the jetty and the 
western end of Monterey Harbor. The observer used high quality 
binoculars during the daytime and night vision goggles during night 
time hours. The observer counted species present; recorded the 
location, age, class, and gender of the species; and measured tidal 
height, wind speed, and air temperature.
    Visual monitoring for California sea lions began at 4:27 p.m. PDT 
on July 4, 2007, and continued until 11:05 p.m. PDT, almost two hours 
after the conclusion of the fireworks display. Visual monitoring for 
Pacific harbor seals began at 6:50 p.m. and ended at 10:47 p.m. PDT. 
The weather and harbor state provided optimal conditions for both 
daytime and night observations.

Pre-Event Monitoring

    Pre-event behavioral monitoring for California sea lions began at 
4:27 p.m. and continued to 10:45 p.m. PDT. Most sea lions were hauled 
out on the north and south sides of the jetty to the east of the USCG 
pier. The observer enumerated a total of 258 sea lions located on the 
north (n=115) and south (n=133) sides of the jetty and underneath the 
USCG pier (n=10) from 7:40 to 8:18 p.m. PDT. Most were yearlings or 
juveniles (2 to 4 years old). Two sub adult males (approximately 5 to 6 
years old) were also observed and appeared to be practicing holding a 
water territory. With the exception of the sub adult males, the 
observer found it difficult to determine the gender of the other sea 
lions. For the next thirty minutes, the number of sea lions hauled out 
was steady (n=258) until approximately 8:45 p.m. PDT when several boats 
passed by the end of the jetty and shot off their own fireworks and 
firecrackers, causing 86 sea lions to enter the water. At this point, 
the number of seal lions hauled out on the jetty decreased to a total 
of 172, with 59 sea lions on the north side of the jetty and 103 seal 
lions on the south side. The number of sea lions hauled out by the USCG 
pier remained constant at ten.
    Pre-event behavioral monitoring for the Pacific harbor seals began 
at 6:50 p.m. PDT and continued to 8:38 p.m. PDT. From 6:50 to 8 p.m. 
PDT, eight harbor seals were hauled out on exposed rocks just offshore 
of the western end of the harbor. As the tide was up to 0.8 meters, 
there were few places for the harbor seals to haul out. At 8:38 p.m. 
PDT, the observer recorded four harbor seals hauled out and two harbor 
seals in the water.

Monitoring During the Display

    Behavioral monitoring during the fireworks display began at 9:16 
p.m. and continued until 9:37 p.m. PDT. By 9:16 p.m. PDT, approximately 
166 sea lions had already flushed from the jetty and under the USCG 
pier most likely due to recreational boaters shooting fireworks near 
the jetty, kayakers, and extraneous fireworks noise. This left only six 
sea lions (2 to 3 year olds) resting under the USCG pier at the start 
of the fireworks display. By the fourth fireworks detonation, all 
remaining sea lions had entered the water. This last flush is likely 
correlated with an 8-inch shell detonated at 9:16 p.m. PDT. Despite the 
detonations, the observer noted that the sea lions entered the water at 
a relatively slow rate without injury.
    There were 18 different instances of sea lion vocalizations 
recorded throughout the fireworks display. The first recording of sea 
lion vocalizations occurred at 9:19 p.m. PDT, one second after an 
explosion with crackles. The last group of vocalizations was recorded 
at 9:36 p.m. PDT, about one minute after the fireworks finale.
    The observer reported that all of the remaining harbor seals at the 
western end of the harbor had flushed at the beginning of the fireworks 
display after hearing the first set of detonations.

Post-Event Monitoring

    Post-event behavioral monitoring of the sea lion sites began at 
9:37 p.m. PDT. The first sea lion (a sub-adult male) to return to the 
jetty hauled out at 9:55 p.m. PDT, approximately 21 minutes after the 
conclusion of the fireworks. According to the report, it was practicing 
holding a territory at the end of the jetty. By 10:30 p.m. PDT, the 
sub-adult male was accompanied by three additional sea lions. No 
information was given as to the age, gender, or class of the three. The 
observer noted that no sea lions returned to the USCG pier (the last 
occupied haulout site for sea lions pre-event) after the fireworks 
display.
    Behavioral monitoring of the harbor seal site continued until 10:47 
p.m. PDT, 70 minutes after the conclusion of the fireworks display. No 
animals were observed in the water nor on land.
    On July 5, 2007 observers conducted a follow-up census from 8:10 to 
09:12 a.m. PDT. The census revealed up to 291 California sea lions and 
31 harbor seals at their respective haul out sites. No injured or dead 
animals were observed that day.
    These data indicate that California sea lions and Pacific harbor 
seals were temporarily displaced from haulout sites during the City of 
Monterey Independence Day Fireworks Celebration. Several factors 
contributed to displacement including: noise associated with 
recreational boaters shooting fireworks near the jetty; increased 
presence of kayakers in the harbor; extraneous fireworks in the local 
area; and the display coinciding with a high tide leaving smaller areas 
for haulout. Acoustic data indicated that, although sea lions flushed 
into the water, they remained in the harbor during the fireworks 
display as the recording equipment captured over 18 instances of sea 
lion vocalizations during the display. In conclusion, the fireworks 
display caused a short-term disruption in behavior as the sea lions and 
harbor seals continued to use the haul out sites post event.
    In addition to the acoustic and behavioral studies conducted during 
the

[[Page 37938]]

City of Monterey Independence Day Fireworks Celebration, the MBNMS 
submitted an annual monitoring report on four other professional 
fireworks displays at MBNMS in 2007. A summary of that report follows.
    For each display, observers conducted pre-event surveys to document 
abundance and distribution of local marine mammal populations within 
the fireworks area. Following the fireworks display, observers 
conducted post-event monitoring to record the presence of injured or 
dead marine mammals, and other wildlife. Pre-event monitoring of the 
Cambria Independence Day Fireworks on July 3 found no animals present 
at the site and a post-event census on July 5 found no dead or injured 
mammals or birds. Observers monitored the Pillar Point Harbor area for 
the Half Moon Bay Independence Day Fireworks on July 4 and recorded one 
harbor seal, one sea otter (Enhydra lutris), and 712 brown pelicans 
(Pelecanus occidentalis) pre-event. Post-event monitoring on July 5 
revealed no dead or injured mammals or birds. The Pacific Grove Feast 
of Lanterns Fireworks display consisted of enumerating all marine 
mammals observed within 400 meters of the fireworks launch site. On 
July 27, observers found eight harbors seals, one sea otter and 
reported no dead or injured mammals post event on July 29.
    In summary, the total number of potentially harassed animals was 
258 sea lions and 17 harbor seals for all fireworks displays. No dead 
or injured marine mammals were reported for all events. Similar to the 
results of the 2006 LOA monitoring report, these results support NMFS' 
initial findings that fireworks display will result in no more than 
Level B harassment of small numbers of California sea lions and harbor 
seals. These effects are limited to short-term behavioral changes, 
including temporary abandonment of haulouts to avoid sound and light 
flashes of professional fireworks displays.

Authorization

    NMFS has issued an LOA to MBNMS authorizing the Level B harassment 
of marine mammals incidental to the coastal commercial fireworks 
display within the Sanctuary. Issuance of this LOA is based on the 
results of the MBNMS 2007 monitoring report which verify that the total 
number of potentially harassed sea lions and harbor seals was well 
below the authorized limits as stated in the final rule (71 FR 40928, 
July 19, 2006). Based on these findings and the information discussed 
in the preamble to the final rule, the activities described under this 
LOA will have a negligible impact on marine mammal stocks and will not 
have an unmitigable adverse impact on the availability of the affected 
marine mammal stock for subsistence uses. No mortality or injury of 
affected species is anticipated.

    Dated: June 26, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-15051 Filed 7-1-08; 8:45 am]
BILLING CODE 3510-22-S